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IDREES v. CITY OF NEW YORK DEPT. OF PARKS AND RECREATION

May 3, 2005.

MOHAMMAD IDREES, Plaintiff,
v.
CITY OF NEW YORK DEPARTMENT OF PARKS AND RECREATION, Respondent.



The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

REPORT AND RECOMMENDATION

Mohammad Idrees brings this complaint pro se against the City of New York Department of Parks and Recreation ("Parks Department" or "Department") alleging that he was discriminated against on the basis of his race, color, national origin, gender, religion, and age in violation of Title VII of the Civil Rights Act ("Title VII") and the Age Discrimination in Employment Act ("ADEA"). Idrees also alleges that the Parks Department retaliated against him for filing a discrimination claim with the Equal Employment Opportunity Commission ("EEOC") and that the Parks Department failed to protect him from a physical assault by another employee.

The Parks Department has moved for partial judgment on the pleadings on the grounds that the majority of Idrees's Title VII and ADEA claims are time-barred and his state tort claim is both untimely and fails to comply with New York State's notice of claim requirements. For the reasons stated below, the Department's motion should be granted. I. BACKGROUND

  For purposes of this motion, the Court assumes the facts alleged by Idrees to be true. Idrees was born in Pakistan in 1946 and is now a U.S. citizen. Complaint, filed Mar. 19, 2004 (Docket #1) ("Compl."), at 1;*fn1 Complaint Form, dated Mar. 19, 2004 (annexed to Compl.), at 3. He earned Bachelors and Masters degrees in Chemistry from the Government College of Lahore, Pakistan and a Masters in Public Administration from Columbia University. Compl. at 1.

  Idrees joined the Parks Department on August 19, 1985 as the Manager of the Engineering Audit Office. Id. at 1-2. He was initially offered a yearly salary of $28,000 in writing but, after he resigned from his previous job, he was informed that he would receive $27,383 per year. Id. at 2.

  From April 28, 1990 to May 19, 1992, Idrees was the Acting Director for the Engineering Audit Office. Id. at 1-2. For his work as Acting Director, Idrees was given an outstanding evaluation by his supervisor and awarded a merit increase. Id. at 1. However, another person was ultimately appointed Director and Idrees was made Deputy Director. Id. After this time, Idrees was unable to obtain any of the promotions he applied for in the Parks Department. See id. at 1-2, 5-6.

  During the course of his employment with the Parks Department, Idrees was denied over 23 opportunities for a promotion. Id. at 1-2.*fn2 He was denied a promotion for the first time when he applied for the position of Director of Fiscal Management on September 20, 1995. Id. It appears that Idrees did not apply again for a promotion until May 28, 1999, when he was denied a promotion to be Chief of Recreation in Brooklyn. Id. at 2. He was subsequently denied promotions to 14 other positions prior to filing his complaint with the EEOC. Id. at 1-2; Pl. Reply at 7-8. While Idrees actually applied for most of these positions, at least six positions were filled without being advertised. See Pl. Reply at 7-8. The various jobs were awarded to white men, white women, an Indian male, and an African American male. Compl. at 1-2. Many of the positions were filled by people with less education or experience than Idrees. See id.; Pl. Reply at 7-8.

  On October 28, 1993, Idrees was physically assaulted by a subordinate, Gabriel Preda, who hit him while yelling, "I will kill you fucking [M]uslim." Compl. at 3. Idrees filed charges against Preda with the Bias Bureau of the Queens Criminal Court, although his supervisor at the time, Dennis Platt, urged him not to pursue the case. See id.; Pl. Reply at 2. Preda was fired, and brought an arbitration proceeding to regain his job. Compl. at 3. Although Platt tried to influence witnesses and told the arbitrator that Preda was welcome back to his old position at the Parks Department, Preda ultimately lost in arbitration. See id.

  Idrees also alleges that he was subjected to harassment by supervisors Platt, Mary Pazan, and Mel Fox. See id. at 3-5. Prior to the assault, Idrees described Platt's behavior and comments as "demeaning" and, following the arbitration with Preda, Platt became "more insulting." See id. at 3. When Idrees asked Platt why he supported Preda in the arbitration hearing, Platt responded, "you Pakistanis are not equal to us." Id. At one point, Idrees became ill from the harassment and took a week of leave from work. Id. When he returned, the harassment increased "tremendously." Id. After Idrees passed two tests for higher level positions in April 1995, Platt told Idrees that he should leave the Parks Department, asking him, "why [do] you think important positions should be given to Pakistani [M]uslims[?]" Id. On May 1, 1995, Platt had Idrees transferred to the Management Services Division, where he was demoted to a "clerk/laborer." Id. at 1, 3.

  In his new position in the Management Services Division, Idrees worked for Mary Pazan. Id. at 3. Idrees claims he was "constantly . . . harassed, insulted, and humiliated" by Pazan. Id. at 4. Idrees sent written requests to Pazan and the Director of Personnel on September 17 and September 28, 1999 asking to be transferred to Manhattan, but did not receive a response. Id.

  On October 1, 1999, Idrees was transferred to Contract Administration. Id. at 5. He informed the director that he wished to be transferred to Manhattan but was told, "Why don't you leave. I will fire you. I will transfer you to Staten Island." Id. In this new department, Idrees was required to report to Assistant Director Mel Fox, who made derogatory comments about Muslims to Idrees, including, "Ismael was a bastard! You [M]uslim people are very nasty." Id. On January 5, 2001, "out of [the] clear blue sky," Fox attempted to hit Idrees on the head with a stapler. Id. Idrees reported this incident to the Inspector General's Office, but Fox was never removed as Idrees's supervisor and remained at the Parks Department until he retired. Id.

  In October 2001, Idrees passed the Associate Staff Analyst ("ASA") civil service exam. Id. He submitted the results of the exam to his director in order to be considered for a promotional title and a salary increase. Id. He received a letter dated January 25, 2002 from the Parks Department notifying him that the New York City Department of Citywide Services had certified his eligibility for an appointment to an ASA position at a salary increase and Idrees was interviewed for a possible promotion. Id. On April 24, 2002, Idrees received a letter from the Personnel Director of the Parks Department notifying him that another candidate had been selected for a promotion to an ASA title. Id.; Letter from David Terhune to Mohammad Idrees, dated Apr. 16, 2002 (reproduced as Ex. 14 to Compl.). Of the 15 people who also took the ASA exam, 13 were promoted to ASA positions by April 7, 2002. Compl. at 6. These individuals included people with less education than Idrees. Id. Idrees filed a complaint with the Department's Equal Employment Office on May 16, 2002. Id. As a result of this complaint, Idrees was eventually awarded an ASA title on November 25, 2002, a promotion that took effect on December 22, 2002. Id.

  Idrees filed a complaint with the EEOC on February 7, 2003 alleging discrimination based on race, color, religion, national origin, and age and also alleging retaliation. Id.; Charge of Discrimination, dated Feb. 7, 2003 (reproduced as Ex. 20 to Compl.). On December 31, 2003, the EEOC informed him that most of his allegations were time-barred. See Letter from Marjorie Scilken-Freidman to Mohammad Idrees, dated Dec. 31, 2003 (reproduced as Ex. 24 to Compl.) ("Dismissal Letter"). The EEOC found that the allegation related to the initial failure to receive a promotion to ASA was timely, but determined that the problem was remedied because Idrees was awarded back-pay to compensate him for the delay in receiving the title. See id. Accordingly, the EEOC issued Idrees a Right to Sue Notice. See Dismissal and Notice of Rights, dated Dec. 31, 2003 (reproduced as Ex. 25 to Compl.) ("Dismissal"). Idrees alleges that he was denied ten other promotional opportunities after he filed his EEOC complaint. See Compl. at 6. He received denial letters for seven positions on June 17, 2003, and a denial letter for one position on August 8, 2003. Id.

  Idrees filed the present complaint on March 19, 2004. See Compl. The Parks Department submitted an Answer, see Answer, filed July 2, 2004 (Docket #8), and subsequently filed the instant motion for partial judgment on the pleadings. See Motion for Partial Judgment on the Pleadings, filed Sept. 3, 2004 (Docket #10); Memorandum of Law in Support of Defendant's Motion for a Partial Judgment on the Pleadings, filed Sept. 3, 2004 (Docket #10, Att. 1) ("Def. Mem."). Idrees responded to the Department's motion on November 3, 2004, see Pl. Reply, and the Parks Department filed a reply ...


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